Chapter 2 The Bill The Broadcasting Services Act 1992 (BSA) contains provisions to regulate the following categories of broadcasting services: national broadcasting services; commercial broadcasting licensees; community broadcasting licensees; subscription broadcasting services; subscription narrowcasting services; and open narrowcasting services. The substantive part of the Bill (Schedule 1) amends the BSA to add a comprehensive legislative framework to regulate a seventh category: online services. Schedule 2 makes a consequential amendment to the Crimes Act 1914. Schedule 1: The regulatory framework Schedule 1 establishes a regime to be administered by the Australian Broadcasting Authority (ABA) to regulate the carriage of content over such online services as the Internet. In particular, the regime aims to remove and exclude certain material (described as either prohibited content or potential prohibited content) from the Internet. Objects and intention The objects of the BSA will be amended to include: providing a means for addressing complaints about certain Internet content; restricting access to Internet content likely to cause offence to a reasonable adult; and protecting children from exposure to Internet content that is unsuitable for children. The statement of Parliamentary intention in the BSA will be amended in two ways. First, by amending it so that the different levels of regulatory controls currently applied to broadcasting services will also be applied across the range of Internet services. Secondly, by adding a threefold statement of intention: it is intended that the regulatory regime will operate so that, in the ABA's opinion, public interest considerations can be addressed without placing unnecessary financial and administrative burdens on Internet content hosts (ICHs) and Internet service providers (ISPs); it will accommodate technological change; and it will encourage Internet technological development and application in Australia. In order to achieve its stated objects, the Bill amends the BSA so that the ABA will be responsible for monitoring the Internet industry as well as the broadcasting services. Complaints and investigations by the ABA A new schedule 5 is to be inserted in the BSA that will establish a regime for regulating certain aspects of the online industry. The regime operates via a complaints mechanism. If a person has reason to believe that an ISP is supplying an Internet carriage service enabling end-users to access either prohibited content or potential prohibited content (defined below) or that an ICH is hosting prohibited content or potential prohibited content, then that person may make a complaint to the ABA. Complaints may also be made where a person has reason to believe that an ISP or ICH has contravened a registered industry code or an online provider rule (discussed in para 2.28 below). The ABA must investigate such complaints except where the complaint is, amongst other things, frivolous, vexatious or not made in good faith. The ABA must notify complainants about the outcome of the investigation. The ABA may also investigate any of the above matters on its own initiative. The regime prescribes the form and content of complaints, the conduct of investigations by the ABA and provides protection from civil proceedings for complainants acting in good faith and for persons making statements in connection with ABA investigations. Definitions: Classification and reclassification regime One of the essential elements of the regulatory scheme is that it defines material that will trigger a complaint as either prohibited content or potential prohibited content. The classification of Internet content is central to those definitions. Definition of prohibited content and potential prohibited content Internet content hosted in Australia is prohibited content if it has been classified RC (refused classification) or X by the Classification Board or it has been classified R by the Classification Board and access to the content is not subject to a restricted access system. Internet content hosted outside Australia is prohibited content if the content has been classified RC or X by the Classification Board. Potential prohibited content is content that has not been classified by the Classification Board but, were it to be so classified, there is a substantial likelihood that the content would be prohibited content. The Bill also provides for the classification of Internet material that consists of a film or a computer game. If the film or game was classified under the Classification (Publications, Films and Computer Games) Act 1995, the Internet content will be deemed to have the same classification. If the film or game has not been so classified, then the Classification Board must give the Internet content the same classification it would be given under the Classification (Publications, Films and Computer Games) Act. If the Internet content does not consist of an unmodified film or game, the Board must classify it in a corresponding way it would be classified under the Classification (Publications, Films and Computer Games) Act. Reclassification The Bill provides that where Internet content has been classified by the Classification Board, (except in the case of deemed classifications for film and computer games), it must not be reclassified for two years. The process of reclassification involves community consultation. The Bill also provides for a process of review of classification decisions by the Classification Review Board. Generally, the Minister, the ABA, an ISP, an ICH or a person aggrieved by the classification may apply for a review. There is also provision for the review of the classification of Internet content that consists of a film or a computer game. Regulatory action dealing with prohibited content within Australia The Bill divides the regulatory regime into two parts: that dealing with prohibited content hosted in Australia and that dealing with prohibited content hosted outside Australia. If the ABA is satisfied that Internet content hosted in Australia is prohibited content, the ABA must give the Internet content host a written notice, being a final take-down notice, directing the host not to host that prohibited content. Other provisions apply where the ABA is satisfied that the Internet content is potential prohibited content. If the ABA is satisfied that there is a substantial likelihood that the content would be classified as RC or X, the ABA must issue the host with a (written) interim take-down notice directing the host not to host the content pending an actual classification by the Classification Board. Further, the ABA must request such a classification from that Board. If, however, the ABA is satisfied that there is a substantial likelihood the Internet content would be given an R classification, then the ABA must only request the Classification Board to classify the content. In either case, the ABA must notify the ICH of the result of the classification and, where the result is that the content is prohibited, then the ABA must issue a final take-down notice. The ABA may defer taking action relating to Internet content hosted in Australia if satisfied by a member of an Australian police force that to do so might prejudice a criminal investigation. Further, the ABA's decision to issue either an interim or a final take-down notice is reviewable by the AAT, as is the ABA's decision to request a classification of Internet content hosted in Australia by an Internet content host. Revocation of take-down notices The Bill provides for a system of revocation of final take-down notices. Where such a notice has been issued in respect of R-rated Internet content, the notice must be revoked if the Internet host later satisfies the ABA that a restricted access system for R-rated content has been implemented so that the content ceases to be prohibited content. Similarly, there is provision for the revocation of interim take-down notices where, prior to any classification by the Board, the Internet content host undertakes in writing not to host the content. Final take-down notices must also be revoked where the Classification Board reclassifies Internet content (including content that consists of unmodified films and games) and determines that it is no longer prohibited. Anti-avoidance measures Where a final or interim take-down notice has been issued to a particular Internet content host, and the ABA is satisfied the host is proposing to host similar Internet content (also prohibited or potential prohibited content) to that identified in the take-down notice, the ABA may issue a special take-down notice directing the host not to host the similar Internet content while the original notice is in force. The decision by the ABA to issue such a notice will be reviewable by the AAT. Compliance - take-down notices An Internet host must comply with an interim, final or special take-down notice within 24 hours after being served with the notice. These compliance rules are known as online provider rules and failure to comply attracts a penalty of up to 50 penalty units. Regulatory action dealing with prohibited content outside Australia Particular provisions apply where the ABA is satisfied that Internet content hosted outside Australia is sufficiently serious to warrant referral to a law enforcement agency (within or outside Australia). In those circumstances, the ABA must notify, amongst others, a member of an Australian police force. The ABA must also notify ISPs under any relevant industry code or standard (to be registered under new Part 5). If there are no such codes or standards, the ABA must give each ISP a (written) standard access-prevention notice directing the provider to take all reasonable steps to prevent end-users from accessing the content. The decision by the ABA to issue a standard access-prevention notice will be reviewable by the AAT. As with Internet content hosted within Australia, the ABA may defer taking action if satisfied that to do so might prejudice a criminal investigation. Withdrawal of notification of content and revocation of notices The Bill provides for a system for the withdrawal of notification of content. If, for example, the ABA is satisfied after reclassification of the Internet content that it is no longer prohibited, then the notification of the Internet content is taken to have been withdrawn. In addition, where Internet content has been reclassified as not being prohibited, any standard access-prevention notice that was issued in relation to that content is revoked and the ABA must give appropriate notification of the revocation. Anti-avoidance devices The Bill sets up an anti-avoidance device to prevent the hosting of other content which is substantially the same as that notified to ISPs under a designated notification scheme. If the ABA is satisfied that content substantially the same to the prohibited content is being hosted outside Australia, the ABA must notify ISPs about the similar Internet content under the designated scheme set out in the industry code or standard. Where the original notification in relation to the Internet content is withdrawn, the notification in relation to the similar Internet content is also withdrawn. The Bill provides for a second anti-avoidance device to prevent the spread of Internet content substantially the same as that already identified as prohibited. It may be used where a standard access-prevention notice has been issued and the ABA is satisfied that the provider supplies an Internet carriage service enabling end-users to access Internet content substantially the same as that in the original notice. In these cases, the ABA can issue a special access-prevention notice directing the Internet provider to take all reasonable steps to prevent end-users accessing such Internet content. The ABA's decision to issue a special access-prevention notice will be reviewable by the AAT. Compliance - Special access-prevention notices ISPs must comply with a standard or a special access-prevention notice within 24 hours after the notice is given to the provider. Failure to comply with these online provider rules attracts a penalty of 50 penalty units. Issuance of access-prevention orders The ABA may, by written instrument, formulate a scheme for substituted service so that service of standard access-prevention notices, revocation of standard access-prevention notices and special access prevention notices, will be deemed effected upon the relevant Internet service providers. Such an instrument would be a disallowable instrument for the purposes of the Acts Interpretation Act 1901. Industry codes and industry standards The Bill provides for the ABA to maintain a register of industry codes and industry standards. Parliament's intention is that ICHs and ISPs will develop industry codes that can be registered under Part 5. Matters that must be dealt with in the codes or standards of both sections of the industry include: procedures for ensuring children do not have access to online accounts without parental consent, information for parents and responsible adults about supervising Internet access, advice for customers of their rights to complain to the ABA about Internet content. The ABA can direct persons to comply with an industry code and failure to do so will attract a penalty of 50 penalty units. The ABA may determine an industry standard if a request to develop an industry code is not complied with or where the ABA refuses to register the code developed by the industry. The ABA must be satisfied that it is necessary or convenient to determine an industry standard in order to provide appropriate community safeguards or to regulate the participants in a particular section of the industry. An industry standard is a disallowable instrument for the purposes of the Acts Interpretation Act. The ABA may also determine an industry standard in relation to a section of the Internet industry for which there is no representative body or where the ABA is satisfied that a code registered for at least 180 days is either totally or partially deficient. Failure by a person to comply with an industry standard will also attract a penalty of 50 penalty units. Online provider rules and determinations A number of compliance matters (such as complying with an interim or final take down notice within 24 hours) constitute online provider rules. Failure to comply with an online compliance rule attracts a penalty of 50 penalty units. As part of the regulatory regime for online services, the ABA may make written determinations setting out the rules that apply to ISPs in relation to the supply of Internet carriage services and also to ICHs about the content hosted in Australia. These online provider determinations will be disallowable instruments under the Acts Interpretation Act. The Minister may exempt an ISP or an ICH from one or more online provider determinations. The instrument of exemption is a disallowable instrument for the purposes of the Acts Interpretation Act. Where an Internet service provider or an Internet content host contravenes an online provider rule, the ABA may issue a formal warning or issue a remedial direction to take certain action to avoid a future contravention. An ABA decision to give a remedial direction, or to vary or revoke a remedial direction, is reviewable by the AAT. If a person contravenes a direction, that person is guilty of an offence and subject to a penalty of up to 50 penalty units. If the ABA is satisfied that an ISP or ICH is acting contrary to an online provider rule, the ABA can apply to the Federal Court for an order that the person cease supplying the Internet carriage service or hosting content as the case may be. Offences The Bill provides for a scheme of offences to complement the regulatory regime. As stated above, a person is guilty of an offence if he or she contravenes an online provider rule or contravenes a remedial direction. If a person continues to contravene either of those, that person is guilty of separate offences in respect of each day the contravention continues. In addition, the Bill also deals with what is sufficient to establish the state of mind of a body corporate or an individual in relation to particular conduct. Protection from civil and criminal proceedings To facilitate the regulatory regime, the Bill provides protection for parties from civil and criminal liability. In particular, ISPs are protected from civil liability in respect of anything done to comply with a registered industry code or standard, or in respect of anything done by the provider in compliance with a standard or special access-prevention notice. Internet content hosts are protected from civil proceedings in respect of things done in compliance with interim, final or special take-down notices. Protection from criminal liability applies to certain people associated with the ABA, the Classification Board and the Classification Review Board. The protection applies in relation to certain specified acts, such as the collection, possession and distribution of material in connection with their statutory functions. Operation of State and Territory Laws Under the regime it is envisaged that the Commonwealth will be responsible for providing a nationally uniform and consistent framework for regulating the activities of online service providers and Internet content hosts. At the same time, it is Parliament's intention that the States and Territories should continue to be primarily responsible for regulating Internet content providers and users. In order to achieve this objective, the Bill provides for the concurrent operation of State and Territory laws and the liability of ICHs and ISPs under those laws. Miscellaneous The ABA is conferred with several miscellaneous functions intended to complement and further the objects of the Bill. These include matters such as monitoring compliance with industry codes and standards, providing advice and assistance about supervision and control of children's access to the Internet, conducting and co-ordinating community education and research into issues relating to the Internet content and carriage services. Schedule 2 - Amendment of the Crimes Act 1914 Schedule 2 of the Bill proposes a consequential amendment to section 85ZE of the Crimes Act. That section prohibits a person from knowingly or recklessly using a carriage service supplied by a carrier to menace or harass others or from using that carriage service in an offensive manner. The proposed amendment will exclude from the application of that section the use of carriage services carrying Internet content. The amendment will stipulate, however, that section 85ZE is not intended to limit or exclude the concurrent operation of any law of a State or Territory (such as crimes legislation).
Senate Committee 1999 << Federal Net Censorship << Internet Censorship/Free Speech << Danny Yee